Berkeley dismisses official who made ‘insensitive’ racial comment during cannabis collective appeal

Berkeley officials contend that Forty Acres operatied an illegal cannabis operation on the top floor of this building at 1820-1828 San Pablo Avenue. Photo: Google Street View
Berkeley officials contend that Forty Acres operated an illegal cannabis operation on the top floor of this building at 1820-1828 San Pablo Ave. Photo: Google Street View

The city of Berkeley on Thursday dismissed the official who was overseeing the nuisance abatement appeal by the Forty Acres medical cannabis collective after he made “insensitive” remarks concerning race during the hearing.

It is the fifth hearing officer to be assigned, and then withdrawn, from the case. Berkeley officials are now uncertain how to proceed.

R. Craig Scott, a former mayor and city councilman from Laguna Hills in Orange County, questioned the race of Chris Smith, the owner of the Forty Acres Medical Marijuana Growers’ Collective. While Smith’s former partner, Toya Groves, was on the witness stand, Scott said he did not think Smith was African-American. Smith’s attorneys have been arguing that Berkeley is persecuting Smith because he is black.

“He doesn’t look black to me, sir, and didn’t from the moment he walked into this room,” Scott said in the hearing.” In a comment directed at Smith’s attorney, Whitney Leigh, Scott said: “You sir look black. I employ…I employ black people. I know what black people look like. Mr. Smith does not look black to me, so I hope you and the witness are enjoying this moment, but it is a serious inquiry for me…If he’s not black, you’re telling me he is.”

Read a partial transcript of Scott’s remarks

Chris Smith, co-founder of the Forty Acres Medical Marijuana Collective. Photo: Frances Dinkelspiel
Chris Smith, co-founder of the Forty Acres Medical Marijuana Collective. Photo: Frances Dinkelspiel

On Thursday morning, Leigh sent an email to Scott, Zach Cowan, the city attorney, and Laura McKinney, an assistant city attorney, asking that Scott recuse himself. Leigh also asked that Berkeley dismiss him and stated that he intended to ask an Alameda County Superior Court judge to intervene.

Scott was dismissed later that day.

“The City did not agree that the hearing officer was biased, but the City did agree that the comments were insensitive and could be perceived as demonstrating bias,” Matthai Chakko, a City of Berkeley spokesman, said in an email. “For that reason the City dismissed the hearing officer because we want the validity of all decisions related to City actions to be beyond question.  Next steps in terms of the abatement action are being considered.”

Smith’s attorneys had previously asked Scott to recuse himself because he had voted against medical cannabis collectives when he was an official of Laguna Hills. They also said they thought Scott had made up his mind about the case before hearing any evidence. Scott refused to recuse himself.

Smith’s attorneys have not only been fighting Berkeley’s ruling that the Forty Acres collective at 1820-1828 San Pablo Ave. is a public nuisance and should close, but have also been arguing that the case should be heard publicly before the Zoning Adjustments Board. Leigh said that two other cases involving cannabis collectives were considered by ZAB and then, on appeal, by the City Council. Smith wants the same treatment so the public can hear his explanation about why he is operating, said Leigh.

Berkeley has said under zoning regulations it has the right to conduct a closed hearing on the matter. An Alameda County judge refused on June 13 to intervene.

The public nuisance abatement appeal started on Tuesday June 17 and was supposed to go on for three days.

Read Berkeleyside’s coverage of Forty Acres

Leigh said he believes the city will now turn the matter over to ZAB. Berkeley officials said they are not certain what they will do next.

The City of Berkeley declared Forty Acres a public nuisance in Oct. 2013 because it was acting as an unauthorized dispensary. Smith appealed the declaration the following month, on Nov. 5. His attorneys argued that the inspection warrant the city obtained to examine the premises was based on spurious information and that, contrary to the city’s claims, Smith lived on the premises.

Smith’s attorneys also asked in the Nov. 5 letter that no-one from the city manager’s office be allowed to preside over the appeal because they could not be impartial. They asked Berkeley to appoint an independent arbiter.

The city agreed to hire an arbiter, but not to Smith’s attorneys’ demands that they be allowed to consult on who was selected. The first three arbiters hired by Berkeley dropped out for various reasons, including because of protestations from Smith’s attorneys, according to court documents.

Berkeley had agreed to pay Scott as much as $12,000 to hear the case, according to Smith’s attorneys.

In papers presented to the court, Berkeley contends that Smith and his attorneys have consistently stalled attempts to set a date to hear the appeal so Smith could earn more money from the sale of medical cannabis.

Berkeley City Council: Let’s add 4th cannabis dispensary (06.18.14)
Berkeley still battling cannabis collective (06.12.14)
Berkeley orders Forty Acres to stop cannabis operations (10.29.13)
Berkeley forcibly enters Forty Acres Cannabis Collective (10.09.13)
Cannabis collective 3PG closes its Berkeley operation (11.29.12)
Court orders eviction of Forty Acres cannabis collective (11.09.12)
Berkeley moves to shut down cannabis operation (09.26.12)
Berkeley orders two cannabis collectives to shut down (02.22.12)
Rapid growth of cannabis collective raises concerns (11.29.11)

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Frances Dinkelspiel is co-founder and executive editor of Cityside. Email: